The Supreme Court agreed on Monday to resolve whether or not a California lawyer might trademark the phrase “Trump too small,” a reference to a taunt from Senator Marco Rubio, Republican of Florida, through the 2016 presidential marketing campaign. Mr. Rubio mentioned Donald J. Trump had “small hands,” including: “And you know what they say about guys with small hands.”

The lawyer, Steve Elster, mentioned in his trademark software that he needed to convey the message that “some features of President Trump and his policies are diminutive.” He sought to make use of the phrase on the front of T-shirts with an inventory of Mr. Trump’s positions on the again. For occasion: “Small on civil rights.”

A federal regulation forbids the registration of logos “identifying a particular living individual except by his written consent.” Citing that regulation, the Patent and Trademark Office rejected the appliance.

A unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled that the First Amendment required the workplace to permit the registration.

“The government has no valid publicity interest that could overcome the First Amendment protections afforded to the political criticism embodied in Elster’s mark,” Judge Timothy B. Dyk wrote for the court docket. “As a result of the president’s status as a public official, and because Elster’s mark communicates his disagreement with and criticism of the then-president’s approach to governance, the government has no interest in disadvantaging Elster’s speech.”

The dimension of Mr. Trump’s palms has lengthy been the topic of commentary. In the Eighties, the satirical journal Spy tormented Mr. Trump, then a New York City actual property developer, with the recurring epithet “short-fingered vulgarian.”

In 2016, throughout a presidential debate, Mr. Trump addressed Mr. Rubio’s critique.

“Look at those hands, are they small hands?” Mr. Trump mentioned, displaying them. “And, he referred to my hands — ‘if they’re small, something else must be small.’ I guarantee you there’s no problem. I guarantee.”

The Biden administration appealed the Federal Circuit’s ruling to the Supreme Court. Solicitor General Elizabeth B. Prelogar mentioned Mr. Elster was free to debate Mr. Trump’s physique and insurance policies however was not entitled to a trademark.

The Supreme Court has twice struck down provisions of the trademark regulation in recent times on First Amendment grounds.

In 2019, it rejected a provision barring the registration of “immoral” or “scandalous” logos.

That case involved a line of clothing offered below the model title FUCT. When the case was argued, a authorities lawyer advised the justices that the time period was “the equivalent of the past participle form of the paradigmatic profane word in our culture.”

Justice Elena Kagan, writing for a six-justice majority, didn’t dispute that. But she mentioned the regulation was unconstitutional as a result of it “disfavors certain ideas.”

A bedrock precept of First Amendment regulation, she wrote, is that the federal government might not draw distinctions based mostly on audio system’ viewpoints.

In 2017, a unanimous eight-justice court docket struck down one other provision of the logos regulation, this one forbidding marks that disparage folks, residing or lifeless, together with “institutions, beliefs or national symbols.”

The choice, Matal v. Tam, involved an Asian American dance-rock band known as The Slants. The court docket break up 4 to 4 in a lot of its reasoning, however all of the justices agreed that the availability at challenge in that case violated the Constitution as a result of it took sides based mostly on audio system’ viewpoints.

The new case, Vidal v. Elster, No. 22-704, is arguably totally different, as the availability at challenge doesn’t seem to make such distinction. In his Supreme Court brief, Mr. Elster responded that “the statute makes it virtually impossible to register a mark that expresses an opinion about a public figure — including a political message (as here) that is critical of the president of the United States.”